E1: Putting Sexual Harassment and Discrimination in the HR Spotlight

May 3, 2022

This week we’re talking all about Matt Lauer. And Harvey Weinstein. And Clarence Thomas. And Andrew Cuomo. And the list goes on, and on, and on. Truth be told, while we’re not going to be talking about any of those individuals specifically, we’re talking about all of them.

Sexual harassment and discrimination have been long-standing issues in the workplace. But media attention and the bold voices of victims has changed the tide of the discussion.

Terry Cook, our Senior Vice President of Employer Services, and Tom Jones, our attorney specializing in labor and employment matters, join Pete Wright to talk about what employers and managers need to know about sexual harassment and discrimination in the workplace.

Episode Transcript:

Pete Wright: Welcome to Human Solutions. Simplifying HR for people who love HR, from Aim HR Solutions on True Story FM. I’m Pete Wright, and this week we’re talking all about Matt Lauer, and Harvey Weinstein, and Clarence Thomas, and Andrew Cuomo, and the list goes on and on and on, and while, okay, we’re not going to be talking about any of those individuals specifically, we are talking about all of them. Sexual harassment and discrimination have been longstanding issues in the workplace, but media attention and the bold voices of victims has changed the tide of the discussion. Today, Terry Cook, our senior vice president of employer services, and Tom Jones, our very own attorney specializing in labor and employment matters, join me to talk about what employers and managers know, and what they need to know about sexual harassment and discrimination in the workplace. Welcome, Terry and Tom. We open our conversation this week with a doozy. Sexual harassment and discrimination at work. Terry, let’s start with you. What are you hearing from employers seeking guidance for their organizations in this area? Give us a sense of the current landscape.

Terry Cook: Sure. So harassment comes up in many conversations in the workplace, in a human resources department, whether that be through supervisors and managers trying to navigate when an employee makes a complaint and how to react to that complaint, all the way through doing actual investigations on complaints that are required by Massachusetts law.

Pete Wright: When you think about Massachusetts law, the landscape of Massachusetts law, what is the scale, the scope and scale of the issue that we’re dealing with? Is there a way to sort of quantify it?

Terry Cook: With Massachusetts law, once a company is assumed to know that there’s an issue in the workplace of harassment. If it’s a supervisor, if it’s a manager, if it’s somebody that is in the right to know, then the company has a responsibility to react to that, to make sure that they’re investigating that by law, even if the employee asks that manager not to bring it further.

Pete Wright: Tom, let’s turn to you. What constitutes sexual harassment? What are the things that Terry’s talking about employees responding to?

Tom Jones: There’s a couple different takes on that. The first one is a hostile work environment, which is probably the more commonly encountered one in most workplaces. An environment where people feel uncomfortable, these people are… It could be jokes, it could be inappropriate touching, it could be inappropriate comments, but it creates this hostile work environment where people feel uncomfortable at the workplace. The other one is quid pro quo, that you alluded to earlier, is more associated perhaps with the #MeToo movement, in which people are coerced into a romantic or sexual relationship against their will. They’re not participating, they’re not volunteering in the relationship, but as a condition of employment, they feel like they have no choice. So those are the two you see regularly come up in the workplace.

Pete Wright: Okay. So let’s talk just to dig a little bit more deeply into this obligation to follow up on sexual harassment complaints. It feels like there is some potential nuance there, and particularly potential conflict between employer/employee, when you talk about this area of employees saying, “Please don’t bring this forward,” yet there is an obligation by the manager to bring this forward. What are the constraints and obligations there, and Tom, can you reflect on that for me?

Tom Jones: Well, you can see in the workplace, in Massachusetts, at least, and probably in some other states, the company will be required to have a policy about explaining the employee’s rights and responsibilities regarding sexual harassment, and as people come forward, the challenge often is trying to create a culture where people feel comfortable coming forward. You want to make sure that employees understand their rights, you want to make sure that employees understand the manager’s obligations, but the general rule, I think, for Terry and I, when we deal with these cases is if somebody comes forward to a manager, even though they say, “Please don’t say anything about it, keep it quiet.” They really want something done. They just don’t want themselves necessarily dragged into it, as much as they try. Most companies will say, “To the extent possible, we’ll keep things confidential. We don’t want to have this spread over the entire company if it’s not necessary to do so, if we can resolve this in a different way,” and so companies struggle with this balance between trying to say, “We want to create a culture where our employees feel comfortable coming forward and do because we want to stop behavior early on and don’t want to get worse.” At the same time, making sure that people don’t get dragged into the middle of fights where they feel very, very uncomfortable. In fact, over the years, I know as we’ve done investigations, sometimes key witnesses have dropped out because they didn’t want to get involved in actually confronting one of the people that they’ve accused.

Pete Wright: Okay. Again, fear of what? Fear of retribution in the workplace? Retaliation?

Tom Jones: Retaliation. In fact, the biggest issue in the litigation of the Equal Employment Opportunity Commission and the Mass Commission Against Discrimination is retaliation. Not so much the underlying claim as the fact that they feel something negative happened to them like they lost out on a promotion, they lost out on an opportunity. They got cut back on overtime. They got whatever it might be. They lost a benefit as a result of having spoken up.

Pete Wright: Okay. So we have an opportunity, then. Let’s just pretend we have an organization looking to build a best-in-class response mechanism for sexual harassment and discrimination in the workplace. As Tom indicated, we’ve got to have some sort of policy, we’ve got to have some sort of training in place, ideally training that isn’t widely lampoonable by folks who go through it, and we have to figure out, who are the people who are going to be carrying the water in this initiative to help build a sense that this organization is trying to build a human-centered approach to response? Where would you start? How would you start to build a mechanism inside this brand new, completely fake manufacturing organization that I have invented in my head? Terry, where would you start?

Terry Cook: As Tom mentioned, the policy is critical. So creating a policy is a great place to start, but then you have to communicate the policy so that all the employees feel comfortable, and then you also mentioned, Pete, that training. So training your managers and your supervisors is another critical step. They have to understand what their responsibilities are, how the company is looking for them to react when an employee comes forward, and making sure that human resources is involved right away. So I think all of those pieces will start us in the right direction. It’s not as easy as putting a policy in a handbook and then never talking about it with your employees or your managers and supervisors. As Tom said, it’s about creating a comfortable environment, someplace where an employee knows it’s okay to come forward, and your managers and supervisors know what is okay and what is not okay when they’re reacting to a complaint.

Tom Jones: In addition to what Terry highlighted, you want the very senior management of the organization to be aware of the policy and what the consequences are of somebody filing a complaint, so that when HR goes to act, they’ve got the support of senior management within the organization, because that will carry a lot of clout with getting employees to understand that the company’s taking this seriously and will act as quickly as possible to resolve it.

Pete Wright: I’ve been through a lot of sexual harassment training in my time as an employee and manager in a big corporation, but perhaps a controversial opinion on this show, much sexual harassment training is really bad and becomes proforma, and I would wager that it is largely not taken seriously by the people who are not actively involved in a sexual harassment or discrimination incident themselves. I wonder, if you could, on the fly, what would you do to make sexual harassment and discrimination training something that is of equal import to talking to somebody about their retirement, their future, their finances? Something that is as engaging as all the rest of it? When people often, I think, struggle sitting through it and clicking through the automated buttons. What do you think? How do we make it great?

Tom Jones: It’s a huge challenge, because you could do sort of rote saying, “Oh, here’s the law, here’s the policy. Here’s what you have to do,” and you can make it as dull as dishwater. That’s absolutely true. The goal, though, and I think what we try and strive to do, is to make, through scenarios, through quizzes, through interactive situations, try and make this as sort of forward thinking as we possibly can about getting you to think about, “Okay, in this situation, is this harassment? Is this not harassment?” Because not every situation is. Some situations are just plain misunderstandings, some situations are just people don’t like each other, but it’s trying to use those scenarios that… By virtue of our hotline here at AIM, we hear from companies all the time about different situations that are going on, where the company’s trying to figure out, “What do we do? How far do we push this issue? How far do we get investigated? How disruptive is this likely to be?”, and then we use those examples in our training to try and illustrate the points of, like I said, “Is this harassment? Is this quid pro quo? Is it hostile work environment? Is it nothing?”, and it’s important to understand all of those different consequences for the individual employees involved.

Terry Cook: I think, in addition to what Tom’s saying, a lot of people have an impression of what they feel harassment training is about, and a lot of times, it’s directly associated with just sexual harassment, and they’re not aware that the harassment definition goes a lot further than that. So in your example, Pete, with this manufacturing environment, what I would do in that training scenario is I would take something that they could relate to, something that might be different than what they’re assuming this harassment training is, giving them that example, and saying, “What do you think? Do you think this is part of harassment?”, and I have found that to be a bigger success than, as Tom said, you could make it dull, you can talk about the law, you can talk about what their responsibilities are, but until you get them to that a-ha moment where they say, “Oh, I see how that could happen here. I’ve seen something like that in my experiences, and that’s why it’s important that I’m here listening to this.”

Pete Wright: I was working with an HR manager the other day who had an interesting observation that I wanted to share with you both, that, in fact, the sad opportunity that we have as trainers is that the media landscape affords us a degree of engagement like we have never had before. People come in already aware of the big names, the celebrities that have been embroiled in these stories because of their ill behavior, and they’re actually ready to engage unlike we’ve ever seen. Are you seeing something similar?

Terry Cook: Yeah, I would agree with you. I think people do recognize it in the media more, and I think it does give them time to understand that. The other piece of this that’s interesting is when people see this in the media, or if we, as a company, do the training, sometimes companies will say, “I’m afraid to say something, because what if that brings up two, three, 10 complaints because I’m educating people?”, but as Tom mentioned before, that’s important too, because we need to stop the wrong behavior before it gets out of control, before it gets to a higher level where the employees happen to be too upset with the company, or they’re so concerned that they want to bring their complaint outside of the company.

Pete Wright: Well, that brings up a fantastic topic as we kind of wind down our conversation today, which is the act of the investigation, the outcomes of the investigation that may be addressing an isolated incident, versus, as you say, Terry, addressing a cultural issue that we also have to take on. Terry, can you walk us through sort of what a typical investigation looks like? Then Tom, maybe you could share how investigations play out?

Terry Cook: Sure. So what an investigation typically looks like is we start with the employee that’s having the issue, sit down with that employee, hear them, listen to the issue. It’s great if they’re willing to write it down for you, but if not, you take the notes, you listen to them. I find one of the biggest positive pieces to the start of an investigation is asking that employee, “What are you looking for from us? What would you like to see happen in the best possible outcome here?”, and I think what a lot of companies don’t realize is a lot of those employees just want it to stop. They’re not looking for some crazy outcome that we are assuming they might be. So asking them that question and then going from there, of course, into finding out some of the details. I’ll let Tom share that, but you’re talking more about kind of understanding the witnesses, et cetera. I don’t know, Tom, if you want to take that from here.

Tom Jones: Once you’ve gathered this information, you begin to look and say, “Okay, who do we think is an appropriate witness to get involved in this?”, because you have to make judgments all the way through this process, Pete, to determine, how broad is the scope of what your investigation is? Sometimes it gets worse as you go… Not worse, but broader as you go, because as you go along, you discover witnesses telling you different parts of the story. Most of the time, it’s going to start fairly narrow. Maybe one person accusing another of an incident that occurred. You then start the investigation, and you’re really important to listen. I think you can stress as an investigator one of the most crucial things is to sit there and maybe talk 20% of the time and listen 80% of the time. We also find with investigations, it’s important to be quiet and let that person fill the gap, because if you’re the investigator and you just jump in and say, “Oh, do you mean this? Do you mean that? Is that what you’re talking about?”, you’re letting that person off the hook. You want the person to be able to sit there and think for a minute and say, “What do I remember? What did I see?”, and talk about it, and you’re always taking notes to try and figure out exactly where this conversation’s going, and once you gather up the notes, you may tend to go down different roads. One other point that Terry highlighted that’s important is at the end of an interview with a witness, I would always say, apart from anything else, keep the confidence, what you said, “Please don’t share with other people,” because it has the potential to sort of poisoning the well. So if you’re talking to a witness and the witness think, “Oh, they’re focused on so and so,” so you go out and talk to those people, start talking to their colleagues at work, and they begin to change their testimony or begin to think, “Well, I’m not going to talk about it, or maybe I don’t want to say anything about this,” that’s a problem. So you want people to try and respect that confidentiality of the process and the integrity of the process to make sure that they’re not talking about, gossiping about what goes on inside the investigation process. Once you’ve done that, you have to gather up all this data and sit and think about it. Did this happen? Did it happen the way the person originally characterized it? Another thing that comes up often is there’s a split between what the person who makes the complaint may want. To echo what Terry said, the person might say, “Well, gee, I just want it to stop,” but as you go through the investigation, you find it’s happened six other times, and now you realize, as a company, we’re responsible for preventing this going forward, so we’re going to take more severe action than we might have done otherwise, and the employee may have to live with the result of that, and the fact that they brought it up is crucial, but the fact that we make a decision as a company is a different standard, a different outcome than that one individual may want.

Pete Wright: How do you navigate that? As we close, what might you say to an employee who is essentially the recipient of news that their action has inspired broader cultural impact than they ever intended? How do you reinforce to these employees that this is a safe place for them and that what they have done for the organization is important, and make them still feel good about coming to work every day?

Tom Jones: Part of it is you lay that foundation at the very beginning when they filed the complaint, to say that as soon as you realize where it’s going, we as a company have to take action on this, because it’s upsetting the workforce, it’s upsetting you and probably coworkers, so we’re going to have to do something immediately. Once it’s done, you’re not going to share the entire nuts and bolts of the investigation with that employee, because it’s not necessary for them to see, but you want to explain to them that we as a company determine the following based upon information you received and from others, perhaps to remove some of the burden from that one person, to say, from you and from others in our investigation, and that’s why we took the action that we thought was appropriate for the entire workplace. If someone’s fired, everyone’s going to see that, that’s going to be obvious, but oftentimes, it may be an apology, it may be a letter in the file, it maybe something like that. There’s a big debate in the legal community about how much you share with the original person that filed the complaint, but oftentimes, you’ll say that we’ve resolved this to satisfactory level as a company, but we’re also going to keep the door open so that if you have a complaint in the future, please come right back to us. Share… If you think the situation hasn’t been corrected, if you think the situation is morphed into something different that we weren’t expecting, by all means, please come back and share that information with us immediately.

Terry Cook: I would just echo what Tom said and not only saying that we need to respond, but we want to. It’s important to the company. We have a zero tolerance for that in our work environment, and we don’t want to see it continue, so it’s important for you or anybody else that has concerns to bring them to us first so we can correct them for you.

Pete Wright: Someone says, “Oh, I don’t want to bring it up, because this will be somehow on my record.” Is there such a thing as “on my record”, and should they be terrified of that?

Terry Cook: The person complaining, we would keep notes of what the issue was so we could do the investigation, but as long as they were truly complaining and they were not a problem in this scenario, then it’s not going to go on a record as if somebody’s getting a disciplinary notice. The only time it’s going on record is if there is a problem with either the person complaining or the person that got complained about, and we needed to proceed with discipline.

Tom Jones: Cases come in all sorts of different shapes and sizes, and so supervisors and managers and HR folks need to be alert, to not necessarily… Someone doesn’t come in and say, “Gee, I’m being… Hostile work environment.” Maybe they’re talking about something else, but as you dig in deeper, you begin to hear phrases that kind of trouble you, and you’re like, “Hmm, there’s something wrong with the behavior here.” So we want to make sure we start looking into it. It’s really keeping your ears open to say, “This is a problem,” or, “This is inappropriate behavior,” or may be inappropriate behavior. We don’t know yet, so we have to start acting and digging into this issue.

Terry Cook: As I was alluding to before, I think that it’s important that the person taking the complaint realize that not everything may be as it’s seen. So I was alluding to before that perhaps the person complaining might not be honest about the complaint, and it may turn during the investigation in the opposite direction. So as the human resources person, you can’t walk into it assuming blame one side or the other until you’ve heard the whole story, as Tom said. It’s critical to really listen to the entire story.

Pete Wright: Where would you send people to learn more and discover some new resources that might help them build a response policy to these issues in their own organizations?

Terry Cook: We have harassment awareness training for both employees and supervisors that you could point them to. As far as policy goes in Massachusetts, we usually point people to the Massachusetts Commission Against Discrimination Policy sample.

Pete Wright: Outstanding, and we will put both of those links in the show notes, which you can find at aimhrsolutions.com. You can listen to the show right there on the website or subscribe to the show in Apple Podcasts, Spotify, anywhere else fine podcasts are served. Thank you both very much, Terry Cook and Tom Jones. I appreciate your expertise and insights. On behalf of Terry and Tom, I’m Pete Wright, and we’ll catch you next week right here on Human Solutions. Simplifying HR for people who love HR.